In a remarkable action involving severely backlogged labor certification
applications, a number of petitioners recently sought mandamus relief in the US
District Court for the District of Columbia. Their consolidated
cases were recently dismissed in summary judgement by that court. For the
case, Liberty Fund, Inc. v. Chao, No. 04-0915 (JDB)(and consolidated cases
No. 05-142, 05-144, 05-145, 05-147, 05-148, 05-149, 05-150, 05-156, 05-258,
05-259, 05-260, 05-261, 05-262, and 05-412 ) (US District Ct. for the Dist.
of Columbia, Sept. 30, 2005), see here.

Since several practitioners across the country are currently considering
mandamus actions against DOL, and since this case offers pointers when
seeking mandamus relief for labor certs, we offer our comments below for
those who are interested in such matters.

It is our opinion that it is futile to commence litigation in labor cert
matters without challenging whether 20 CFR 656 (both pre-PERM and PERM)
properly implements the statutory scheme at 212(a)(5)(A). The fact is that
there exists a fundamental conflict between the statutory intent behind
212(a)(5)(A) and the plain language of 212(a)(5)(A) - Congress's intent was
clearly to produce a statistics-driven system (the kind that DOL operated
the labor cert program under from 1965 thru 1980), whereas the plain
language clearly mandates an individualized system, not a statistical one.
The general rule in statutory construction is that, absent ambiguity, the
plain language of the statute controls. For the last two-and-a-half
decades, under both the variants - pre-PERM and PERM, DOL has operated the
labor cert program under an individualized decision paradigm. However, the
DOL has, without any statutory authority whatsoever, shifted the burden of
production in labor certs from its shoulders' onto the employers'. Under
the plain language of the statute, it is the DOL's burden to produce such
workers as are willing, able, qualified and available in order to deny an
application for labor certification. Under the plain language of the
statute, the employer has merely to apply for labor certification, which
must be certified, UNLESS DOL can produce a suitable worker. There is
nothing in the statutory scheme to permit DOL to compel the employer to
perpetrate a recruiting charade on the alien worker and US workers alike.
Even if Congress were to step up now or later and say that DOL's fraud on
US workers (the labor cert recruiting circus) is A-OK by Congress, it would
not change the fact that these last 25 years, DOL has acted without
Congressional authority to back up its promulgations at 20 CFR 656. As to
the related matter concerning burden of proof, in theory this always
remained with DOL pre-PERM, however, in practice, through the use of
devices such as BALCA's "totality of circumstances" test and CO's use of
conclusory language in reaching arbitrary conclusions, the DOL de facto
moved the burden of proof onto employers' shoulders, without any statutory
authority to do so. This was the case not in isolated situations, but a
consistent, pervasive pattern of behavior by COs across years and decades.
However, since the bar found ways to procure certification despite the
hurdles raised by DOL, and since employers were concerned more about ends
not means, this extra-statutory behavior by DOL went unchallenged. The
situation on burden of proof is much more serious in PERM, which enshrines
the "totality of circumstances" test into the regulation, thereby granting
DOL enormous extra-statutory power unto itself in the labor certification
process. Currently, the bar does not grasp how unfriendly a regulation PERM
really is. Only the passage of time will convince the bar and the regulated
community that denial after arbitrary denial, delay after arbitrary delay,
is the direct result of PERM. The heart of PERM is unpredictability,
without which DOL's powers in PERM become meaningless, this
unpredictability is DOL's design in PERM, and unfortunately, predictability
is what the bar and employers have gotten used to over the last 25 years of
the labor cert process. The situation is particularly ghastly at 20 CFR
656.24(b)(3), through which the DOL seeks to bring back statistical
determinations back into the labor cert process. DOL is apparently willing
to re-test long-established case law which forbids DOL from taking into
account labor market information, also known as unemployment rate, in
making labor cert determinations. Put plainly, the statute commands that
labor certification applications be certified in the teeth of massive
unemployment UNLESS the statutory conditions are satisfied (able, willing,
qualified, available), which, nota bene, are DOL's burden both to prove and
to produce. One can quarrel about whether such an outcome is just to US
workers, what one cannot quarrel about, in our opinion, is what the plain
language of the statute says.

Applying these principles to the case mentioned above Liberty Fund, Inc. v.
Chao, No. 04-0915 (JDB)(and consolidated cases No. 05-142, 05-144, 05-145,
05-147, 05-148, 05-149, 05-150, 05-156, 05-258, 05-259, 05-260, 05-261,
05-262, and 05-412 ) (US District Ct. for the Dist. of Columbia, Sept. 30,
2005), we believe that TRAC factors arguably would not control the outcome,
if the mandamus action simultaneously challenged the DOL's application of
212(a)(5)(A) (see p. 13). We further believe that reliance on Ganem v.
Heckler may have been better placed had the statutory basis of 20 CFR 656
been challenged (see fn 8 at p. 15). In light of the serious statutory
objections to 20 CFR 656, asking for simplification of the review process
is akin to re-arranging the deck chairs on the Titanic (see fn 16 at p.
24). However, the plaintiffs in this case have made it somewhat easier for
future litigants similarly situated in that DOL has provided the District
Court with a projected timeline for adjudicating the massive DOL backlog,
the failure to do which may make future courts more sympathetic (see p.
16). This case also provides a helpful list of cases arguably on point
which other district courts in other circuits may find more persuasive than
those cited by the District Court in justifying its decision (see p. 15).

Assuredly, this is not the last we will hear of mandamus actions against
DOL. Immigration Daily will continue to keep our readers on top of this
critical issue.

We welcome readers to share their opinion and ideas with us by writing to editor@ilw.com.

District Court Says Mandamus Relief Is Not Warranted For DOL's Labor Cert Delays
In Liberty Fund, Inc. v. Chao, No. 04-0915 (JDB)(and consolidated cases No. 05-142, 05-144, 05-145, 05-147, 05-148, 05-149, 05-150, 05-156, 05-258, 05-259, 05-260, 05-261, 05-262, and 05-412 ) (US District Ct. for the Dist. of Columbia, Sept. 30, 2005), the court said that "[We] recognize[] that, on its face, a delay of two to four years in processing applications for permanent labor certification appears unduly long and works a hardship on employers and their prospective employees. However, the competing priorities posed by the tens of thousands of other pending permanent labor certification applications and by the H-1B and H-
2B temporary certification applications, together with the good faith efforts of the agency to
alleviate the delays, outweigh those considerations. Hence, after careful consideration ... the Court concludes that mandamus relief is not warranted." The court applied the six principles cited in the leading case on the issue of unreasonable delay, Telecommunications Res. and Action Ctr. v. FCC to determine whether agency delay was so unreasonable as to warrant mandamus.

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Dear Editor:
In response to Ali Alexander's letter to the Editor (10/07/05 ID), such an opinion can only be one from someone who has obviously never owned a business. You don't simply offer more money to attract labor when you are operating on a narrow margin and know you can't pass the costs along. You either cut your business down, find the labor you need, go out of business, or move to where the labor is located which is exactly what your theory in practice is causing in this country.

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